Lawsuit: A machine which you go into as a pig and come out of as a sausage. ~Ambrose Bierce, The Devil's Dictionary

by D. Jennings Meincke

A. Background on Federal Unfair Competition.

Unfair competition, both the common law tort and the federal statute,
attempts to enforce a certain level of "honest practices in industrial
or commercial matters." 127 The courts continually enlarge the
definition of unfair competition, often based on their conceptions of
fairness and honesty in business dealings. 128 Obviously, past decisions
lend guidance in defining unfair competition situations, but the
concepts of fairness are fluid. 129

An injured party brings Federal unfair competition claims under section
43(a) of the Lanham Act. 130 Unlike trademark infringement claims under
the Lanham Act, unfair competition claims do not require any federally
registered marks. As a result, section 43(a) involve all federal
trademark infringement claims and extend further to cover other unfair
business practices. 131 Section 43(a) claims break down into two
categories: 132 likelihood of confusion and false advertising. 133

B. Likelihood of Confusion.

As in federal trademark infringement analysis, a likelihood of confusion
exists when there is confusion as to the source, sponsorship, or
association between goods or services. 134 The elements to prove a
section 43(a) claim based on likelihood of confusion are:

1. One uses any word, term, name, symbol, device, or combination,
2. in interstate commerce,
3. which is likely to cause confusion as to source, sponsorship, or
association. 135

The elements for a section 43(a) claim of likelihood of confusion are
comparable to trademark infringement except one does not need a
federally registered trademark.

C. False Advertising.

A section 43(a) claim of false advertising requires a showing that a
party made misrepresentations in the course of business. The elements an
alleged injured party must show to sustain a section 43(a) claim based
on false advertising are:

1. a party uses any word, term, name, symbol, device, or combination,
2. in interstate commerce,
3. to misrepresent the nature, characteristics, qualities or
geographic origin of its or another's goods or services. 136

Typically, actions that fall under a claim of false advertising are the
copying of advertising, misrepresentations in advertising (literal and
by omission), and advertised goods differ from delivered goods. 137

E. Reverse Passing Off.

In reverse passing off, another section 43(a) action, a party
misrepresents the source of its product by not informing the public who
created it. 143 The seller misrepresents the source by removing or
obliterating the original trademark. 144 To explain, the distinction
between "passing off" and "reverse passing off" is in "passing off" a
seller associates another party's mark with a good or service and with
"reverse passing off" the seller removes another's mark prior to sale.

Reverse passing off falls into two categories, express reverse passing
off and implied reverse passing off. 145 In express reverse passing off,
the infringer replaces the original mark with his mark and sells the
product. In implied reverse passing off, the infringer only removes the
mark prior to selling the product, leaving the product unbranded.

The infringed party suffers damages by implied and express reversed
passing off. An infringer thwarts the purpose of a mark by its removal.
A trademark serves three purposes: it designates origin, it develops
goodwill by allowing customers to associate a level of quality with a
product from a specific origin, and it serves as advertising. 146 By
removing the mark, the infringer prevents the ultimate customers from
knowing the true source of the product, creating a means for deceiving
the customer. 147 The deception can occur if the infringer replaces the
unbranded products with products of a lower quality. 148 Additionally,
the removal of the mark denies the infringed party from further
developing any advertising value of the mark. 149 Replacing the mark,
express reverse passing off, further aggravates the situation. 150

However, the damage from reverse passing off does not receive universal
recognition. The mark served its main purpose, identification of origin,
when the "infringing" party purchases the product. 151 The "infringer"
compensates the original producer for the goodwill built into the item
by its purchase. Additionally, the "infringing" party buys title to the
product and should utilize the product as it wishes. 152

Regardless of the reality of the damage, actions need to be analyzed in
terms of both implied and express reverse passing off. The courts view
of what constitutes appropriate business conduct and what constitutes
unfair competition shifts with time. 153 In Learned Hands words: "There
is no part of the law which is more plastic than unfair competition, and
what was not recognized an actionable wrong twenty-five years ago may
have become one today." 154

1. The Exhaustion Doctrine.

Under the Exhaustion Doctrine, a distributor has a right to market a
branded item in an unchanged state. 155 Additionally, a distributor may
advertise she sells a product associated with a well-known mark. 156
However, distributor must clearly state the extent of it's connection to
the public that influences purchasing decisions to avoid confusion of
origin. 157

Courts permit a distributor to indicate that a product comprises
copyrighted material and who owns the copyright. 160 But, a mark owner
can prevent a distributor from branding an unbranded product in some
cases. 161 However, courts generally allow the brand use when the
product maintains substance and quality and the distributor indicates
its identity. 162

2. Implied Reverse Passing Off.

Typically, courts and commentators view implied reverse passing off as
when a party removes a mark from a product and sells the product. 163

Further, a court should allow the variation on an implied reverse
passing off claim as it is consistent with statutory interpretation of
the section 43(a). The courts recognize the implied reverse passing off
claim under section 43(a). 164 Under section 43(a), the elements of
proof of a violation do not require the involvement of a federally
registered mark. 165 Enforcement of the statute prevents confusion as
to source or representation of fact. 166 If removing a federally
registered indication of source is a section 43(a) violation to prevent
confusion, then removing any other indication of source violates section
43(a) also.

One of the first cases dealing with an implied reverse passing off claim
found removing a trademark from a good did not violate section 43(a). In
PIC Design Corp. v. Sterling Precision Corp., 167 a competitor removed
PIC's trademark from a gear, which the competitor then resold. 168 Even
though the court condemned the action as a "violation of good business
ethics," it found no section 43(a) violation. 169 The court looked
towards the pertinent section of the Lanham Act to find that only 'the
application of 'a false designation of origin,' not the removal of a
true designation" actionable. 170

In The Trademark Revision Act of 1988, Congress removes from section
43(a) the language the PIC court uses to deny finding an implied reverse
passing off violation. 176 In PIC, the court focused on the
"application" language to deny a section 43(a) violation by removal. 177
Again, in 1986, the United States District Court, Southern District New
York reaffirmed this interpretation. 178 However, with the removal of
"affix, apply, or annex" from section 43(a), courts could decide cases
with facts similar to PIC violate section 43(a).

In 1981, the Ninth Circuit recognized implied reverse passing off as a
cause of action under section 43(a). 179 In Smith v. Montoro, a case
involving an actor not receiving credit for a movie role, the court
states in dicta that section 43(a) supports a claim for implied reverse
passing off. 180 Since then, a number of other courts recognize a
section 43(a) claim for appropriating someone's product without
recognition. 181 However, at least one court opines that section 43(a)
contains no language requiring express attribution. 182

In Marling et al. v. Ellison, an author of a cookbook did not give
credit to the work of another author. 183 Similarly,in Dodd v. Fort
Smith Special Sch. Dist. No. 100, the school district did not
acknowledge the contributions of a teacher and a journalism class to a
history book. 184 Additionally, in R.H. Donnelley Corp., v. Illinois
Bell Tel., Illinois Bell Telephone did not report that Donnelley also
contributed to producing a business yellow page directory. 185 All of
these cases involve a unique product, either of literary or a
compilation of advertising. West Does not provide a unique service in
that Lexis competes against them. Additionally, the search product, a
court opinion, lacks uniqueness and is in the public domain. 186

3. Express Reverse Passing Off.

Express reverse passing off occurs when a party "removes or obliterates
the original trademark without permission and rebrands the item. 188 As
with implied reverse passing off, courts find express reverse passing
off violates section 43(a).

Even though the accepted definition involves removing trademarks,
removing an indication of origin falls under section 43(a) as well. The
broad language of section 43(a) does not restrict violations to
federally registered marks. Instead, section 43(a) refers to confusion
caused by "any false designation of origin." 189 The West copyright
notice on the cases acts as an indication of origin. 190

Courts find express reverse passing off actionable under a number of
circumstances. 191 However, the courts do not apply consistent
guidelines on what acts violate section 43(a). 192 Perhaps the
subjective nature of the analysis, or differences in evaluation of
appropriate business behavior account for inconsistences in decisions.
Or perhaps the courts generally categorize a set of actions as express
reverse passing off but still look towards the section 43(a) element of
confusion to determine infringement. 193 An analysis of the express
reverse passing off cases may shed light on the direction of the courts.

In PIC Design Corp. v. Sterling Precision Corp., 194 the defendant
removes the plaintiff's mark from a gear and resells it. 195 The
defendant, however, ships the gear in a "Sterling" box. 196 The court
holds that Sterling's actions do not violate section 43(a). 197 The
court states that "[t]o hold otherwise would be to forbid any
repackaging, resale, or reshipment of any item not manufactured by the
shipper but sold under his name. 198 However, the court states that if
Sterling places its own mark on the gear and sold the item, a section
43(a) action might exist. 199

The PIC court does no confusion analysis to reach its decision either.
201 However, the 1964 section 43(a) statute does not include any test of
likelihood of confusion. 202 However, the current version of section
43(a) does have a likelihood of confusion test, so the PIC court result
could possibly be different.

Additionally, while not a commodity item, a number of companies sold
precision gears. 203 If PIC had been the sole producer and Sterling's
actions lead people to believe that more than one producer existed for
the precision gears, perhaps the Court would have found a section 43(a)
violation. In that situation, the court might have seen PIC as more
"likely to be damaged" 204 and found the section 43(a) claim.

In another Second Circuit case, Commodore Import Corp. v. Hiraoka & Co.,
Inc., 205 the court finds no reverse passing off when the defendant
purchases replicas of the plaintiff's goods and applies marks to them.
206 The plaintiff orders some radios with it's trademark, but proceeds
to cancel the order. 207 The defendant purchases the radios, removes
substantially all of the plaintiff's marks, and sells the radios. 208
The court holds if the defendant could "order exact replicas of the
plaintiff's radios, then selling radios originally ordered by plaintiff,
which plaintiff eventually declined to purchase, under defendant's
labels is not unlawful." 209

Commodore points out that courts give deference to handling publicly
available goods. Since exact radios could be ordered, then the
defendants could change the indication of origin. 210

In Arrow United Indus. v. Hugh Richards, Inc., 211 another Second
Circuit case, Arrow purchases dampers from Richards and resells them
with slight modifications. 212 Arrow also replaces the Richards mark on
the damper with its own mark. 213 The court finds Arrow's reputation as
a unique damper-maker would suffer if Richards continues substituting
labels and reselling the dampers. 214 Between affixing the marks and
modifying the damper, the court found "sufficient serious questions
going to the merits" of Arrow's section 43(a) claim to make them a fair
ground to litigation. 215

In Rosenfeld v. W.B. Saunders, the court held that the removal of a name
from a treatise did not automatically create a section 43(a) claim. 217
In Rosenfeld, the defendants removes the name of the original author
from a medical treatise revision. 218 However, the defendants clearly
acknowledge the original author in the preface along with the
modifications of the treatise. 219 Additionally, the plaintiff tells the
defendant to work on the treatise revision. 220 Because of the preface,
the plaintiff failed to establish a likelihood of confusion, resulting
in no preliminary injunction on a section 43(a) claim. 221

The Rosenfeld court follows the traditional disclaimer rule in finding
no likelihood of confusion existed. 222 The court reviews the Second
Circuit's holdings and found that it "repeatedly recognize[s] that an
effective disclaimer can significantly reduce the potential for consumer
confusion caused by an infringing product if it clearly designates the
source of the product." 223

In a 1994 case, Waldman Publ. Corp. v. Landoll, Inc., New York District
Court found a reverse passing off does not require removal of a mark.
225 The plaintiff publishes classic stories for children, as does the
defendant. 226 The court granted a preliminary injunction based on
section 43(a) for reverse passing off because Landoll must have copied
Waldman's books since the "structure, texts and illustrations of the
competing adaptations" are too striking for coincidence. 227 Though some
courts require an original product be tampered with for reverse passing
off, this court found that a too narrow interpretation of section 43(a).
228

The court found the defendant copied the plaintiff's children's books
and it is "inherent" in the defendant's conduct that purchasers will
mistakenly believe that the defendant creates the books. 229 Due to the
inherent result of the defendant's acts, the court deems an analysis for
confusion not necessary. 230

Moving to a 1990, Fifth Circuit case, in Roho v. Marquis 231 , the court
vacates a section 43(a) injunction for an explicit reverse passing off
claim. The injunction prohibits removing the plaintiff's trademark from
seat cushions, assembling the cushions to make a mattress, and selling
the mattress under another mark. 232 The plaintiff manufactures and
sells patented wheelchair seat cushions and also assembles the cushions
into a mattresses. 233 The defendant's mattresses, assembled from the
plaintiff's cushions, are virtually indistinguishable from the
plaintiff's mattresses. 234 However, the court compares the cushions to
defendant's mattresses 235 and find the defendant do more than a
superficial modification of the cushions in making the mattresses. 236
Since the defendant creates a new product, it can remove the plaintiff's
mark from the cushions and place it's own mark on the final product. 237

However, the Roho court not only reviews the section 43(a) claim
regarding the seat cushions but a section 43(a) reverse passing off
claim based on copying the plaintiff's mattresses as well. 238 The court
states the defendant maintains a right to copy Roho's unpatented
mattress because it "is in the public domain and may be made and sold by
whoever chooses." 239 The court focuses on the fact that Roho made the
mattress and not relabel a Roho mattress. The court finds this is not
reverse passing off. 240 The court also states that some unfairness
occurs because the defendant uses a patented product to parallel an
unpatented product, but the competition serves the public interest. 241

The Roho case turns on the holdings that 1) the defendant creates a new
product and can remove the component parts' marks and 2) it serves the
public interest to promote competition by allowing a defendant to copy a
product in the public domain. 242

Moving on to the Seventh Circuit, in Web Printing Controls Co. v. Oxy-
Dry Corp., 245 the defendant obliterates, hides or otherwise confuses
246 the plaintiff's mark on the plaintiff's printing machinery. 247 Web
and Oxy-Dry enters into an agreement that Oxy-Dry would sell Web's
equipment with Web's mark. 248 Oxy-Dry breaches the contract and Web
sues. 249 However, the court does not consider the contract breach in
determining the unfair competition claim. 250 The court finds a
violation of section 43(a) because "(1) Oxy-Dry's material misbranding
of WPC's products, (2) Oxy-Dry's introduction of WPC's products into
interstate commerce, and (3) the likelihood that consumers will be
confused by Oxy-Dry's material misbranding." 251

In a 1994 Seventh Circuit case, Classic Font Corp. v. Fontbank, Inc.,
256 the court holds that a marketer of software violates section 43(a)
when it excludes identification of the product's originator. 257 In
Classic Font, the defendant becomes the sole marketer and distributer of
plaintiff's software font package. 258 The defendant uses its trademark
and name on the packaging 259 and the software code 260 without
indicating the plaintiff creates the program. The court finds these
actions likely cause customer confusion as to origin and grants a
preliminary injunction. 261

Classic Font illustrates the broadness of section 43(a) violations. Even
though the plaintiff categorizes the defendant's actions as reverse
passing off, 262 this is not the case. Traditional reverse passing off
requires a mark to be removed. 263 The defendant never removes a mark,
it only did not acknowledge the source of the software. 264 Instead of
analyzing reverse passing off, the court analyzes strictly for the broad
unfair competition claim. The court does not consider the
contract/copyright issues in the section 43(a) violation analysis, it
just looks at the elements of a section 43(a) violation: confusion,
false designation of origin, and use in commerce. 265

Numerous litigants file reverse passing off claims in the Ninth Circuit.
In Smith v. Montoro, a movie producer leaving off an actors name from
the film credits violates section 43(a) for implied reverse passing off.
266 Later, the court in Litchfield v. Spielberg requires at least
substantial similarity in products for a section 43(a) reserve passing
off violation. 267 Four years after Litchfield, the Ninth Circuit in
Lamonthe v. Atlantic Recording Corp. restricts reverse passing off to
bodily appropriation, which includes leaving a co- author's name off of
a song. 268

In 1990, the Ninth Circuit starts looking towards section 43(a) language
for guidance on reverse passing off claims. In Shaw v. Lindheim, a
television pilot writer believes a television executive took an idea for
a program. 269 The court states even with substantially similarity, a
section 43(a) reverse passing off claim does not exist without bodily
appropriation. 270 Further, the court does not want to "expand the scope
of the Lanham Act to cases in which the Federal Copyright Act provides
an adequate remedy. 271 However, the court also states it observes
section 43(a)'s purpose of preventing individuals from misleading the
public because the likelihood of confusion between the television pilots
is minimal. 272 Additionally, the "likelihood of confusion" test is
consistent with the current language of section 43(a). 273

In 1993, the Ninth Circuit retains the requirement of bodily
appropriation for a reverse passing off claim under section 43(a). 274
In Summit Mach. Tool Mfg. v. Victor CNC Systems, the defendant orders
lathes from the manufacturer of the plaintiff's lathes, applies it's
label to the lathes, and sells them. 275 Since the defendant does not
remove and replace any marks from the lathes, no bodily appropriation
occurs. 276 The court opines that without bodily appropriation, the
section 43(a) claim must fail. 277

However, in Sega v. Maphia, a United States district court in the Ninth
Circuit does not require a bodily appropriation for a section 43(a)
claim. 278 In the case, the defendant stores on the bulletin board Sega
software game files with Sega's trademarks on its file sections and file
descriptors, and on programs. 279 The court finds that when users
download software, confusion inevitably results. 280 The court states
the defendant's actions constitute trademark infringement. 281 The court
also determines that the programs are substantially similar to Sega's
games, not a bodily appropriation. 282 Even without a finding of bodily
appropriation, the court finds a section 43(a) violation because the
public is likely to be deceived by the similarity of the marks. 283

By not requiring a bodily appropriation for section 43(a) infringement
claim, the Sega v. Maphia court is more in line with the language of the
statute than the traditional Ninth Circuit appropriation requirement.
For a reverse passing off claim under the section 43(a), the Ninth
required bodily appropriation take place at least for cases heard up to
1993. 284 Even though the Sega v. Maphia opinion does not mention
reverse passing off, 285 this opinion should be viewed as a departure
from the interpretation that bodily appropriation is required for a
section 43(a) claim. The language of section 43(a) does not require
bodily appropriation, only actions or indications used in commerce that
are likely to confuse people as to origin of a product. 286

An Eleventh Circuit federal district court in Playboy Enterprises, Inc.
v. Frena, 287 finds a bulletin board operator with images from Playboy
violates trademark law and section 43(a). 288 Frena, a computer bulletin
board owner, distributes unauthorized computer images of copyrighted
Playboy photographs. 289 Frena uses the terms "PLAYBOY" and "PLAYMATE"
for the file descriptors for the images. 290 The court finds Frena's use
of those terms would likely cause customers of Frena to believe that
Playboy either sponsored, endorsed or approved of the use of the
photographs. 291 The court states that falsely suggesting affiliation
constitutes a section 43(a) violation. 292 Further, Frena replaces
Playboys' trademark on the images with his own trademark, constituting
express reverse passing off, a section 43(a) violation. 293 The court
states Frena would have a defense to the express reverse passing off if
he converts the images into something different. 294 But, Frena only
replacing the trademark does not change the image into a new product.
295

4. Altering the File: Converting into a New Product.

A number of courts state a section 43(a) reverse passing off violation
does not exist when the defendant converts the plaintiff's product into
a something new. In Playboy, the court states no reverse passing off
exists "when a defendant modifies a product to such an extent that the
defendant converts it into something different." 297 The defendants in
Playboy only "stripped" Playboy's product of its original identity and
did not convert the image into something new. 298 In Roho, the court
finds the issue as whether the defendant's efforts "created a new
product to which he could apply his own label." 299 The Roho court
compares the product before and after the defendant's efforts to
determine if the efforts creates a new product. 300 The Ninth Circuit
determines a reverse passing off claim occurs when "substantial
similarity" exists between the defendant's product and the plaintiff's
product. 301
------

FOOTNOTES

127 McCarthy, supra note 9, 1.03.
128 Id. at 1.04.

129 Some examples of unfair competition:

"infringement of trademarks and service marks; dilution of good will in
trademarks; use of confusingly similar corporate, business and
professional names; use of confusingly similar titles of literary works
on other literary property, and on commercial goods; the appropriation
of distinctive literary and entertainer characterizations; simulation of
container or product configuration and of trade dress and packaging;
infringement of the right of publicity; misappropriation of valuable
business values; "bait and switch" selling tactics; false
representations and false advertising; "palming off" goods by
unauthorized substitution of one brand for the brand ordered; theft of
trade secrets; filing a groundless lawsuit or administrative challenge
as an aggressive competitive weapon; sending cease and desist letters
charging patent infringement before a patent has been granted; an
unreasonable rejection of goods shipped under contract; [and] physically
obstructing entrance to a competitor;s place of business and harassing
its customers." -- Id. at 1.05.

130 False designations of Origin and False Descriptions Forbidden

(a)(1) Any person who, on or in connection with any goods or services,
or any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false designation
of origin, false or misleading description of fact, or false or
misleading representation of fact, which --

(A) is likely to cause confusion, or to cause mistake, or to deceive as
to the affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval of his or
her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin or his or her or
another person's goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or
she is or is likely to be damaged by such act. -- 15 U.S.C. 1125.

131 No. 93-489-CIV-J-20, 1993 WL 522892 at *11.

132 Common law unfair competition also has a category of
misappropriation. The International News Service v. Associated Press,
248 U.S. 215 (1918), decision initiated the concept of misappropriation.
In I.N.S., Associated Press took current news stories from International
News about the World War I in Europe, rewrote the stories and published
the stories as Associated Press stories. Id. The Court found that
International News had a quasi-property right against competitors in
terms of current news stories and A.P. misappropriated that property
right. Id. at 243.

However, Justice Brandeis, in his dissent, objected to the policy of
granting exclusive rights to an idea lacking congressionally granted
rights. Id. at 258.

158 Copyright, contract law, and state and common laws concerning trade.

159 750 F.2d at 911.

160 However, the distributor needs to state that is it not associated
with the copyright owner (if that is the case) to avoid an unfair
competition claim. C.M. Paula Co. v. Logan, 355 F.Supp. 189, 192-93
(N.D.Tex. 1973).

161 733 F.Supp. 40 (if a real question as to alteration and change in
quality exists, a distributor cannot indicate origin of the product).

165 "Any person who, on or in connection with any goods or services, or
any container for goods, uses in commerce any word, term, name, symbol,
or device, or any combination thereof, or any false designation of
origin, false or misleading description of fact, or false or misleading
representation of fact..." -- 15 U.S.C. 1125(a).

(a) Any person who shall affix, apply, or annex or use in connection
with any goods or services, or any container or containers for goods, a
false designation of origin, or any false description or representation,
including words or other symbols tending falsely to describe or
represent the same, and shall cause such goods or services to enter into
commerce, and any person who shall with knowledge of the falsity of such
designation of origin or description or representation cause or procure
the same to be transported or used in commerce or deliver the same to
any carrier to be transported or used, shall be liable to a civil action
by any person doing business in the locality falsely indicated as that
of origin or in the region in which said locality is situated, or by any
person who believes that he is or is likely to be damaged by the use of
any such false description or representation. -- 15 U.S.C. 1125(a)(1963).

178 CCS Communication Control v. Law Enforcement, 628 F.Supp. 1457,
1460 (S.D.N.Y. 1986) ("Indeed, the courts of this district have held
that the receipt of an item, manufactured by another producer, the
removal of its identifying letters and its resale is not a violation of
the Lanham Trademark Act because the it 'makes actionable the
application of "a false designation of origin" not the removal of a true
designation.'" quoting PIC at 115.").

179 In Smith v. Montoro, the court stated that a "section 43(a) claim
may be based on economic practices or conduct 'economically equivalent'
to palming off. Such practices would include 'reverse passing off,'
which occurs when a person removes or obliterates the original
trademark, without authorization, before reselling goods produced by
someone else. Reverse passing off is accomplished "expressly" when the
wrongdoer removes the name or trademark on another party's product and
sells that product under a name chosen by the wrongdoer. 'Implied'
reverse passing off occurs when the wrongdoer simply removes or
otherwise obliterates the name of the manufacturer or source and sells
the product in an unbranded state." Smith v. Montoro, 648 F.2d 602, 605
(9th Cir. 1981) (cites omitted).

186 Subject Matter of Copyright: United States Government Works.
Copyright protection under this title is not available for any work of
the United States Government, but the United States Government is not
precluded from receiving and holding copyrights transferred to it by
assignment, bequest, or otherwise. 17 U.S.C. 105 (1993).

216 "The district court found that the Arrow-Foil damper, on the market
since 1964, was well known throughout the industry, and that no other
United States company made a damper like it." Id. at 414-15.

228 "But reverse passing off would not be established, in counsel's
view, if Landoll took the Waldman text and illustrations and had them
reprinted, even without any changes, since" reverse passing off is when
you physically take the other guy's product and put it in your package."
That narrow construction is inconsistent with the Lanham Act's broad
remedial purpose, and contrary to the weight of authority, in this Court
and elsewhere, defining and condemning reverse passing off as a form of
false designation of origin. The Landoll books falsely fail to designate
the Waldman books as the origin of the adaptations Landoll is selling in
its own name. Such conduct is actionable under section 43(a).
Id. at *16 (footnote deleted).

234 Id. at 357 (however, the defendant's mattress does include a unique
feature - it permits increased manual adjustment along the longitudinal
axis).

235 The trial court, Roho, Inc. v. Marquis, 717 F.Supp. 1172 (E.D. La.
1989), compared the mattresses, not the cushion to the mattresses. The
appellate court found this misdirected and the proper comparison is
between the product purchased (the cushion) and the product the
defendant sells (the mattress). 902 F.2d at 360.

236 Id. at 360 (court found that different consumer groups purchase the
cushions compared to the mattresses, making the products commercially
distinct as well)

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